DOC. No. XXXIX. 7 



v; 



'■'■•a- 4^*+ to oV- 



REPORT 



OF 



col. a. w. McDonald, 



KELATIVE TO HIS 



MISSION TO ENGLAND 



MARCH 1861. 




FTs7 



Doc No. 39. 



EXECUTIVE DEPARTMENT, 
March 8, 1361. 

Gentlemen of the Senate 

and Ifovsf- of Delegates: 

Shortly after, the adjournment of the last session of the general as- 
sembly, I appointed Col. Angus W. McDonald, whom I considered well qualified for the 
sen-ice, an agent, to proceed to England, and to " obtain from thence all record and docu- 
mentary evidence tending to ascertain and establish the true lines of boundary between 
Virginia and the states of North Carolina, Tennessee and Maryland." I communicate 
herewith, his able and elaborate report, which I commend to your consideration. 

JOHN LETCHER 



Doc. No. 39. 



REPORT. 



RICHMOND, Feb'y 2, 1861. 
Sir, 

Under the resolution passed by the general assembly of this common- 
wealth on the 10th day of March 1860, "authorizing and requesting the governor, 
if he should deem it expedient, to send to England a competent agent, to obtain 
from thence all record and documentary evidence tending to ascertain and estab- 
lish the true lines of boundary between Virginia and the states of North Carolina, 
Tennessee and Maryland, your excellency was pleased to commission me as such 
agent, and by your written instructions, of date the 22d of May 1860, to indicate, 
the service I was expected to perform. 

I now beg leave to report to your excellency the results of my mission. 

To make provision for its effectual prosecution, which, in the event of sickness 
or any serious accident to myself, might have been much interrupted or possibly 
entirely defeated, I engaged my son, William N. McDonald, to accompany me ; 
and though never entirely disabled by ill health from the prosecution of my work, 
by his aid I have been enabled to accomplish at least double the amount of exami- 
nation and research I could singly have made — and thus have greatly enhanced 
the value and increased the volume of record, documentary and historical matter ; 
which I have had copied, and herewith return, neatly and substantially bound up 
in nine volumes of manuscript; and one book of rare and valuable maps. 

We sailed from Boston on the 13th of June, and arrived in London on the 25th 
of the same month, by rail, from Liverpool. 

At the instance of your excellency, I was furnished, by Mr. Secretary Cass, with 
a letter to the U. S. minister in London (Mr. Dallas), and by the intervention of 
the Hon. James M. Mason, one of Virginia's senators, with a very kind letter from 
Lord Lyons (the British minister at Washington) to Mr. Hammond, under secre- 
tary of state, in charge of the colonial office of Great Britain. 

Through the kind interposition of Mr. Dallas and Mr. Hammond, the rigid forms, 
by which all access to British archives are guarded, were as much relaxed in my 
behalf as was consistent with the requirements of British laws ; but notwithstand- 
ing the favor extended to me, it was not until the 14th of July (twenty <lays after 
my arrival in London) that I could obtain permission to examine the archives of 
the "state paper office." I mention this in no spirit of complaint, being well per- 
suaded that the difficulty of access to this extensive and invaluable depository, has 



6 Doc. No. 39. 

been the efficient means by which all that may authenticate the early history of 
Virginia, is still preserved. 

So soon as I ascertained that some time would elapse before I could be suffered 
to enter the " state paper office," I sought and very promptly obtained from the 
authorities in charge of the "British museum," permission for my son and myself 
freely to examine the almost unlimited stores of historical matter there collected, 
and under admirable conservative regulations, made accessible. There, our time 
and labor, until the 15th of July, were spent, and amply rewarded ; and, after that 
date, when, by the rules of the " state paper office" our examinations there were 
suspended, we still pursued our work in the museum. 

I was also permitted to examine the records of the " rolls office," in which I was 
successful in finding the record of the original charter or grant of Maryland to 
Ceulius (Calvert) Lord Baltimore, engrossed in the Latin language; a certified 
copy of which I have brought back with me, bound up in vol. 8, page 34. 

Of this document (the charter of Maryland), more important in its bearing upon 
the question of boundary between Virginia and Maryland than any other, I have 
obtained several copies: The one just mentioned, from the "rolls office," au- 
thenticated by the official seal and the certificate of the assistant "keeper of the 
rolls," I. Sharpe. A second copy I obtained from a transcript of said charter, as 
the same now remains of record in the "state paper office," in a book entitled 
"Maryland;" which in July 1723 was examined and corrected by the original 
charter to Lord Baltimore, under the great seal of England, which had been ob- 
tained from Lord Baltimore through Mr. Blake, as by the endorsement copied from 
said book, will be seen. 

[Anno 1723 is the same year in which a book containing another copy of said 
charter, was printed, which I shall refer to again.] 

In this copy (the second above named) were preserved in the first entry of it 
[in the book from which I have had it copied], the abbreviations used in the " rolls 
office" in recording Latin charters of that and anterior dates; which abbreviations 
[rendering the text liable to mistranslations] are all written out at length in a dif- 
ferent ink, showing the original as at first transcribed, and the emendations made 
by correcting from the original grant to Lord Baltimore, under the great seal. 

These abbreviations also appear in the copy obtained from the "rolls office," 
above mentioned. 

I made every effort to find the original grant itself. I sought out the represen- 
tative of the Baltimore family, and finally discovered him a prisoner for debt in 
the " Queen's bench" prison, to which some twelve years since he had been trans- 
ferred from the "Fleet" prison, after having been there confined for more than 
eight years. 

I obtained an interview with this gentleman : informed him of the object of my 
visit — which he appeared entirely willing to promote — and learned from him, after 
most minute enquiry, that the original charter had never come into his hands with 
the other family papers, which had: that he had never seen it; never heard of it 



Doc. No. 39. 7 

as being in the hands of any other person ; and that he verily believed .said origi- 
nal charter to be utterly lost or destroyed. 

I instituted other enquiries concerning it, which proved entirely fruitless. 

I obtained a (third) copy, not of said original charter, but (as by comparison 
will be seen) of the record of said charter, as the same was entered in the "rolls 
office." This I found printed in a book, "printed in London in 172-'., by John Bas- 
kets, printer to the king's most excellent majesty." This is the same year in 
which, as it appears by the entry in the " Maryland" book, before referred to, the 
transcript of the charter, as the same had been entered from a copy from the rolls 
office, was corrected or emended by the original under the great seal. 

This book purports to contain the acts of assembly passed in the province of 
Maryland from the year 1092 to the year 1715, and the date of its publication, was 
about eight years after the crown had restored to the proprietor the government of 
that province. By the label on the back of this book, it would appear that it had 
originally belonged to the office of the "board of trade;" and this indication of 
ownership is confirmed by the fact, that four copies of it, still preserved in the 
" state paper office," are shown by the minutes of that office to have been trans- 
ferred to it from the "board of trade;" from which it is fair to infer that this 
printed book of " the laws of Maryland" is the same which Thomas Bacon, com- 
piler and publisher of the laws of Maryland in about the year 1704, thus refers to 
in a note to the preface of his said publication: "I have seen [some time before 
I left England] in 1745 an edition printed in London, at Lord Baltimore's expense. 
as I have been informed, for the use of the 'board of trade,' with the Latin char- 
ter prefixed, but could never meet with a copy of it in this province, nor can I re- 
collect the date it bears." 

A copy of "Bacon's Laws of Maryland" I have procured, and will return with 
this report. In it will be found, prefixed to the laws, what he assumes [upon the 
authority he there quotes] to be a copy in Latin of Lord Baltimore's charter, with 
a translation of the same into English. 

I also obtained from the British museum a manuscript copy of an old printed 
pamphlet, entitled "A Eolation of Maryland, together with a Map of the Coun- 
try—the Conditions of Plantation — and his Majestie's charter to Lord Baltimore — 
translated into English;" which appears from its title page to have been printed 
in London in the year 1035, and by the contents, to have been written by an inha- 
bitant of Maryland. This manuscript copy will be found bound up in vol. 9, and 
commences at page 206 of that volume, A fac simile of the map in said pamphlet 
will be found in the book of maps, and numbered 4. 

One of the depositaries of this pamphlet in London, as will be seen by the title 
page, was one Mr. William Peasely. Whether he is the same Mr. Peasely of 
whom Lord Baltimore makes mention in a letter written by him to Mr. Secretary 
Windebank, as his brother Peasely, I could not ascertain. The Peasely spoken 
of in the letter, and mentioned as his lordship's brother Peasely, was certainly a 
catholic, and probably in that sense only designated as brother. The letter to 
Secretary Windebank will be found copied in vol. 2d, page 209. 



8 Doc. No. 39. 

In this printed pamphlet there is not given any copy of the Latin charter of 
Lord Baltimore ; and the pretended translation of it into English is not at all 
licensed by the Latin text, as the same is recorded in the "rolls office," or as the 
same stands recorded in the "state paper office." 

Some such version, however, was necessary to give color to the claim of terri- 
tory, which the map in said pamphlet professed to picture. It will appear from 
said map, as also from Smith's map of Virginia, published in 1612, that the head 
spring of the Little Potowmac river (now called Potomac creek) was at that day 
supposed to rise further west than the head spring of the main river, both being 
then supposed to head on the eastern side of the Blue Kidge — and by assuming 
that the Little Potomac was the river Potomac referred to in Lord Baltimore's 
charter, the amount of territory embraced within the charter calls, as the same 
had been rendered in said translation, would be largely increased, and the great 
river, as far as the same had been then explored and was known to be navigable, 
would fall entirely within the limits of those calls. 

I procured still another copy, or rather alleged copy of Lord Baltimore's charter, 
in Latin, and a translation of the same, furnished by said Bacon, and promulgated, 
under the authority of Lord Baltimore and the provincial legislature of Maryland, 
about the year 1704, as may be gathered from the contents of said beok [the title 
page to it being without date or indication of the place where it was printed] in 
which I found it, and which book I have herein before mentioned. 

The identity in substance and similarity in language between the English trans- 
lation, as given by Bacon, and the one given in the pamphlet entitled "A Relation 
of Maryland," in giving a description of the territory as embraced in the calls of 
the charter to Lord Baltimore, justifies the conclusion that the latter was predi- 
cated upon a Latin version of the charter, similar to the Latin one given in 
" Bacon's book." 

It will be seen, by comparing the two, that the Latin text, as given by Bacon, 
is a plain and gross departure from the original, as found recorded both in the 
" rolls office" and the " state paper office :" and but for these gross and patent 
violations of both the letter and spirit of the original grant, no reasonable doubt 
would ever have existed that the whole Potomac river, from its source, wherever 
fixed, and whenever ascertained, to its mouth, was wholly without the limits of 
Maryland, and within the bounds of Virginia. 

I have caused to be translated by " Thomas Edlyne Tomlins, attorney at law, 
and record solicitor of Lincoln's-inn-fields, London," so much of the Latin char- 
ter, as the same is found recorded in the " rolls office," as describes the bounds 
of the territory thereby granted ; which translation cannot be so interpreted as to 
permit the Maryland boundary along the bank of the river Potomac to be upon 
the Virginia shore — and more, it establishes, beyond all plausible cavil, "Point 
Lookout" as the point from which the closing line of the descriptive calls is to be 
drawn over the hay to the headland called in the charter " Watkins' Point," and 
mentioned as the beginning point ; fortified too by the fact, that the shortest line 
from "Point Lookout" to this headland would reach it exactly at the point ascer- 
tained [by Lieutenant Michler, under the direction of the joint commissioners 



Doc. No. 39. 9 

upon the boundary between Virginia and Man land] to be the initial point agreed 
upon [by Scarborough and Calvert, agents of the crown and Lord Baltimore] in 
the year 1668— whereas, if the closing line were to be drawn from " Smith's 
Point" on the south side of the Potomac river, the shortest line to this headland 
would strike it several miles south of said iriitial point, as ascertained by Lieut. 
Michler. Mr. Tomlins was recommended to me as distinguished for his ability as 
a translator of ancient Latin records, and for his fidelity as a man. 1 doubt not 
that his work will justify those recommendations. 

We have abundant evidence, in " Smith's" and other histories, to prove the fact 
that the bank of the Potowmac on the Virginia shore, was occupied by " enforted 
Virginians," cultivating the land [probably], but certainly occupying the river it- 
self with their vessels, carrying away the produce, and keeping up, annually, trade 
and intercourse with the natives living on both banks of the river, for years before 
the date of the grant to Lord Baltimore. In the face of these facts, the charter 
would not have been construed to extend to, much less embrace the southern 
shore of the Potowmac, even if its language had been susceptible of such an in- 
terpretation. 

As bearing upon this point. I have found a copy of a "Report of the Lords 
Committee of Trade and Plantations," made 13th of November 1G85, and the 
king's order thereupon ; by which the now " state of Delaware" was adjudged to 
belong to William Penn (who had purchased the same from the duke of York). 
upon the ground that, " though clearly included within the boundary calls of Lord 
Baltimore's patent, it did not pass to him, in consequence of the fact that, before 
the date of said grant, it was not uninhabited, except by savages, as Lord Balti- 
more had described the territory to be, which was embraced within the bounds set 
forth in his grant." Said report and order will be found in vol. 8, p. 102. 

In vol. 2, page 128, will be found a copy of a paper preserved among the re- 
cords of the state paper office, headed " Considerations upon the Patent to the 
Lord Baltimore, and dated June the 20th, 1632," the date of said patent, from 
which I make brief extracts, to wit : 

" 1st. — Because the matter of the petition of the patentee, mentioned to be the 
motive and cause of the grant, is (viz :), that the region thereby granted was then 
uninhabited, and possessed of the barbarous heathen or savages." "It is not so; 
for in truth part of the said region had been formerly inhabited by his majestie's 
subjects, which were sent over from the London collony of Virginia." 

"5th. By the Lord Baltimore's patent, this election" (referring to a provision 
in the 4th item, not necessary to quote here) " is taken away, and part granted to 
him, viz : from ' Watkins' Point' south, which is in the 38 degrees of latitude to 
•Le Ware's Bay,' which is in the 41 degree of latitude, or thereabout." 

In book 8, from page 242 to page 252, will be found copied the answers given by 
Lord Baltimore, dated the 26th of March 1678, to questions propounded to him by 
the lords committee, &c, dated 10th of April 1676, copied in same book page 106 
to page 110. 

2 



• 



10 Doc. No. 39. 

In answering the 10th question, Lord Baltimore says, "The boundaries, latitude 
and longitude of this province are well described and set forth in a late map or 
chart of this province, lately made and prepared by one Augustine Herman, an in- 
habitant of said province, and printed and publiquely sold in London by his ma- 
jestie's license, to which I humbly refer for greater certainty," &c. 

For the map here referred to, I made myself, and caused others to make great 
search in every known depository in London, but could find no map authenticated 
as "Herman's." 

In Ogilby's America, which was published in London in 1G71, I found a map of 
Maryland, which upon its face is said to be "the atchievement of the right honor- 
able Cecilius Calvert, baron of Baltimore," &c. ; having upon it also the Balti- 
more coat of arms. This is the only map in the book which was not taken by 
Ogilby from "Montanus' history,'' a German work, from which Ogilby copied — 
and this may be the map to which Lord Baltimore referred in his said answer. It 
Is, with very slight change, the same as the one which I have above referred to as 
found iu the pamphlet entitled "A Relation cf Maryland." A fac simile of each 
will be found in the book of maps, before mentioned. They both dot Lord Balti- 
more's southwestern boundary on the south bank of the Potomac river; continue 
it so dotted up said river [the first in point of time] to the Little Potomac ; and 
ihence up it on its south bank as far as said stream is shown on said map: the 
second, to what is now known as Aoquia creek; and thence up it along its south- 
ern bank as far as said creek is shown on said map. Both also lay down " Wat- 
kins' Point"' as in latitude -'3^ degrees, and run the boundary line across Chesapeake 
bay from "Smith's Point," the south bauk of the Potomac at its mouth. 

The grant of the "Northern Xeck" by Charles the second to Ralph, Lord Hop- 
ton, Henry, Earl of St. Albans, Lord Culpepper and others, in the first year of 
that king's reign, included, by expressed words, "the rivers Potowmac and Rappa- 
hanock, and all the islands within their banks." This grant will be found ref< rred 
to in 1st vol. Rev. Code, page 343, chap. 89. It is also referred to in a letter from 
King Charles Second, of date March oOth, 1GG3, copied in vol. 4, page 2G1, and 
therein mentioned as having been made in the first year of his reign, the com- 
mencement of which he was accustomed to date, from the day of his father's death 
upon the scaffold. In this letter he descrihes said grant as embracing all the land 
lying between the rivers Potowmac and Rappahannock and the Chesapeake hay, 
together with the rivers themselves, "and all the islands within the banks of mid 
rivers." The southern boundary of Maryland, from Watkins' point on the Chesa- 
peake bay shore, across the peninsula to the Atlantic ocean, was established by 
agreement between Col. Edmund Scarborough, acting for the crown, and Lenard 
Calvert for Lord Baltimore, in June 1GG6. The grant of Pennsylvania by Charles 
Second to William Penn, is dated the 4th of March 1G80-1. See a letter from 
Charles Second to Lord Baltimore, dated April 2, 1681, copied in volume 8, 
page 145. 

In another letter from the same to Lord Baltimore, dated the 19th of August 
1GS'2, copied in vol. S, p. 147, the king says [in referring to an adjustment of the 
boundary between the grants to Baltimore and Penn], "the boundary between 
Pennsylvania and Maryland cannot by any method be so certainly effected as by 



Doc. No. 39. 11 

an admeasurement of the two degrees north from 'Watkins' Point,' the express 
south bounds of your patent, and already so settled by commissioners between 
Virginia and Maryland," &c. And further says, "willing and requiring you that 
with all possible speed, upon the receipt hereof, to proceed to determine the 

northern hounds of your province as the same borders on Pennsylvania, by an ad- 
measurement of the two degrees granted in your patent, according to the usual 
computation, of sixty English miles to a degree, from the south hounds of Mary- 
land as the same are already settled by commissioners, as is above mentioned." 

So that " Watkins' Point," where the same is crossed by tin- line between lati- 
tude 38 deg. and 39 deg. north of the equator, is the true southern boundary line 
of Maryland across the peninsula to the Atlantic ocean — and thus settling the 
southern line of Maryland to be said line of latitude 38 deg., and allowing 60 
English miles to be a degree, as intended by the king's charter to Lord Baltimore, 
"Mason's and Dixon's" line came to be fixed at 39 deg. 43 min. 18 sec. north of 
the equator, instead of on the 40 deg. of north latitude, as claimed by Lord Balti- 
more, upon the two maps I have made reference to above. 

Beside the records and documents I have specially noticed, because of their 
direct and authoritative bearing upon the subject of Virginia's boundary lines. 
many others will be found copied, which fortify and confirm the former. I will 
call attention to hut one: it is a complete copy of the proceedings of the general 
assembly, begun at James City, Oct. 1st, 1685, and prorogued to Nov'r, and con- 
tinual till the 13th of December 1685. Among the proceedings of this assembly 
will be found a copy of those upon a bill introduced and passed, to establish ports 
in the four great rivers of Virginia, &c, by which it will be seen that at that time 
the provincial assembly claimed jurisdiction of the Potomac river. See vol. 7, 
page 310 to 420. 

In addition to the two maps mentioned as promulgated under the auspices of 
Lord Baltimore, I procured some forty-six others, about of which bear cer- 

tain and definite testimony to the fact that the Maryland line along the Potomac 
river Avas always considered [by those having the matter in their official charge, 
and therefore most likely to know and regard the truth] to be on the northern 
bank of said river. Many of these 46 maps were deemed worth preservation, to 
show how little was known of the interior of the territory of both Virginia and 
Maryland, above the flow of the tides, prior to the actual survey of the "Northern 
Ipsck," under the mandate of the crown, made in 1730, and complete;! and offi- 
cially reported in 1747. The testimony taken and preserved during the progress 
of this survey, establishes the fact that it was not until after the year 1705 that 
any reliable information was obtained to show that the Potowmack river had its 
sources west of the Blue Ridge. 

I call the attention of your excellency to some of the more important of these 
maps, upon which the boundary line along the Potowmac river, separating Vir- 
ginia from Maryland, is dotted along the northern shore of that river, from "Point 
Lookout" to the head spring of the north branch of Potowmac. The one num- 
bered 24, in the book of maps made by John Mitchell, was commenced in 1750, 
three years after the official report of the survey of the Northern Keck. Among 
other evidences of its authenticity, appearing on its face, I quote the following: 



12 Doc. No. 39. 

" This map was undertaken with the approbation and at the request of the lords 
commissioners of trade and plantations, and is chiefly composed from drafts, 
charts and actual surveys of different parts of his majestie's colonies and planta- 
tions in America ; great part of which have been lately taken by their lordships' 
orders, and transmitted to this office by the governors of the said colonies and 
others. 

JOHN POWNAL. 
Plantation Office, February 13, 1755." 

Map No. 25, follows Mitchell's, and was published the same year, upon a small 
scale, for same magazine. 

No. 28, by "T. Bowen," dots the boundary of Maryland along the Potowmac 
on the northern bank. 

Nos. 30 and 29 show nothing in relation to the lines between Virginia and 
Maryland, but is very valuable and worthy of note, as a fac simile of "Mason's 
and Dixon's line," as the same is preserved in the state paper office in London. 

No. 31, "Sayer and Bennett's" map, printed in London in 177G, dots the Mary- 
land boundary on the northern bank of the Potowmac. 

No. 33, by " T. Kitchen," follows Mitchell's, No. 24 ; and Sayer and Bennett's, 
No. 31. 

No. 34, Carver's map, published in 1776, gives the same boundary to Maryland, 
along the Potomac. 

No. 35 follows Mitchell's No. 24, and was published in 1769, and corrected from 
the original materials of Gov. Pownal, member of parliament. 

No. 38, made in 1783, according to the articles of the definitive treaty of peace 
between the United States and Great Britain. As to the boundary between Vir- 
ginia and Maryland, along the Potowmac, it follows Mitchell's, No. 24. 

No. 39, "Emau Bowen's" map, dots that line along the northern bank of the 
Potowmac river. 

No. 41, " Faden's" map, published in 1796, does the same, at and near the head. 

No. 42, a very neat and apparently accurate map of the United States, the 
Canadas, &c. made in Paris, under the direction of the French government, lays 
down the south boundary of Maryland along the Potowmac, from the district of 
Columbia to the head of that river, along the northern bank. Below the district 
the line is not dotted, but the color of Maryland comes down to " Point Lookout." 
This map was printed in Paris in 1812. 

No. 13 is a fac simile of the map returned by the commissioners appointed to 
run and settle the boundary line between Virginia and North Carolina. In the 
state paper office I found a reference to the field notes taken and returned by the 
surveyors who ran this line, and other documents relating to the work — all which 
I directed to be copied and sent to me. I paid in advance for the copies, and have 



Doc. No. 39. 13 

the written undertaking of the clerk who is to do the work, that the manuscript 
should be forwarded to me, through the hands of Mr. Dallas, the American minis- 
ter at London. I have not yet received it, but have no doubt I shall. 

In confirmation that the charters, documents and maps referred to, establish the 
bounds of Maryland, as not including the Potowmack river, or any part of it, 
below ordinary high water mark, the acts herein after referred to, show that Vir- 
ginia claimed and exercised exclusive jurisdiction over the Potowmac river as far 
up as the banks of the same were seated, until the compact with Maryland in 
1785, by which Virginia granted to that state certain rights in said compact set 
forth. 

It was not until October 1G73 that the attention of the colonial legislature was 
directed to the subject of establishing ferries ; and the first and only step taken 
was to provide for the appointment of commissioners to fix upon suitable points at 
which to establish free ferries, who were to report to the next assembly. 2 Hen'g 
St. at L. p. 310. 

The next act of which we have any account, was in August 1702, "for the regu- 
lation and settlement of ferries," &c. Hen'g, vol. 3, p. 218. 

The next act will be found in same vol. page 4G9 — a portion of the preamble to 
which is in these words : "Whereas a. good regulation of ferries in this her majes- 
ties colony and dominion will prove," &c. By this act many ferries were estab- 
lished over James, York and Rappahannock rivers; and one over Potowmack river, 
in these words : " In Stafford county, from Col. William Fitzhugh's landing in 
Potowmac river, over to Maryland," &c. — page 473 same, vol. 3. By the 3d sec- 
tion of this act it is enacted, "that where a ferry is appointed by this act on one 
side of the river, and none on the other to answer the same, it shall and may be 
lawful for the county courts in such a case to appoint an opposite ferry, and order 
and allow the prices directed by this act." 

Sec. 8 of same act imposes a penalty upon any "person whatsoever, who shall, 
for reward (except necessity of a parish require it for going to church), set any 
person or persons over any of the rivers whereon ferries are or shall be appointed 
by virtue of this act." 

By an act passed in 1720 "for settling new ferries," &c. within the colony and 
dominion of Virginia, one new ferry was established on "Potowmack river, from 
Col. Rice Hoe's to Cedar Point in Maryland." See 4th Hen. Stat. L. page 93. 

By an act passed May 1732, vol. 4, H. S. L. p. 362-3, another ferry was estab- 
lished "on Potowmac river, just below the mouth of Quantico creek, over the river. 
to the landing place at Col. George Mason's in Maryland." 

Another, by an act passed in 1734, H. St. vol. 4. p. 438, "on Potowmac river, 
from Robert Lovell's in the county of Westmoreland, across the river to Mary- 
land," &c. 

Another, by an act of the 17th of November 1738, Hen. St. vol. 5, p. G6, was 
established over Potowmac river, "from the plantation of Francis Aubrey in the 
county of Prince William, over to Maryland." 



14 Doc. No. 39. 

Two others wore established by an act of May 1740, Hen. vol. 5, p. 104. One 
" on Potowxnac river, from the plantation of John Hereford in Doeg's neck in the 
county of Prince William, over the river to the lower side of Pamunky, in Prince 
George's county in Maryland." 

Another, from Hunting creek warehouse, on the "land of Hugh West in Prime 
William county, over the river to Frazier's point in Maryland." 

Another was established by an act of May 1742, Hen. vol. 5, p. 189, " on Potow- 
mac river, from the land of Ebenezer Floyd in the county of Fairfax, across the 
river to Powel's landing in Maryland." 

Another, by an act passed in September 1744, Hen. vol. 5, p. 249, "on Potowmac 
river, from Evan Watkins' landing opposite the moutli of Canagoehego creek, to 
Edmund Wade's land in Maryland." 

Two others were established by an act of February 1745, Hen. vol. 5, p. 3C4, 
to wit : "On Potowmac river, from the land of William Clifton in Fairfax county. 
over the said river to the land in the tenure of Thomas Wallis in Prince George's 
county in Maryland" — and " from the land of Hugh West in Fairfax county, over 
the said river either to Frazier's or Addison's landing." 

By an act passed in October 1748, Hen. vol. G, page 18, at least two additional 
ferries over Potowmac river were established, to wit : One " from the land of William 
Eussell on Sherendo, cross into the fork or cross the main river." The second, 
" from the plantation opposite to Rock creek over to Maryland." 

By an act passed in November 1753, Hen. St. vol. 6, p. 375, another ferry was 
established "on Potowmac river, from the land now in possession of John Posey 
in the county of Fairfax, across the said river to the land of Thomas Marshall in 
Maryland." 

By act of May 1755, Hen. vol. G, p. 494, two new ferries were established, to 
wit : " From the land of Thomas Swearingen in the county of Frederick, over 
Potowmac river to the land opposite thereto in the province of Maryland" — and 
"from the land of Laurence Washington in the county of Stafford, over the said 
river to the land opposite thereto, in the province of Maryland." 

By act of April 1757, Hen. vol. 7, p. 12G, the following new ferries over Po- 
towmac river were established, to wit : 1st, " from the land of George Brett in the 
county of Prince William, over Potowmac river to the laud of Roger Chamber- 
land iu the province of Maryland," &c. 2d, " from the land of Josias Clapham in 
the county of Fairfax, over Potowmac river to the land on either side of Mono- 
chisey creek in the province of Maryland," &c. 

In 1759, Hen. vol. 7, p. 299, a new ferry "from the land of William Tyler in 
the county of Westmoreland, over Potowmac river to Cedar point in Maryland." 

In 1761, Hen. vol. 7, p. 401, a new ferry "from the land of Robert Harper in 
the county of Frederick, over Potowmac river to his land on the opposite side in 
the province of Maryland," was established. 






Doc. No. 39. 15 

hi 1764, Hen. vol. 8, p. 4-1, a new ferry was established "from the land of 
George Wilson Spooner in Westmoreland county, over Potowmao river to Cedar 
point in Maryland." 

In 1765, Hen. vol. 8, p. 14(5, an act passed to establish a new ferry "from the 
land of Thomas Shepherd in the town of Mecklenburg (now Shepherdstown) in 
the county of Frederick, over Potowmae river to his land opposite thereto in the 
province of Maryland." (This ferry was discontinued at session 17G6 as interfering 
with Swearingen's, vol. 8, p. 263.) 

A new ferry was established in 1766, Hen. vol. 8, p. 198, "from the land of 
Elizabeth Cook in Stafford county, below the mouth of Chapawamsick creek, 
across the river Potowmae to the land of Clement Kennedy in Maryland." 

In November 1760, vol. 8, Hen. p. 368, a new ferry was established "from the 
land of Benjamin Foreman in the county of Frederick, over Potowmae river to 
the land of the Right Honorable Lord Baltimore in Maryland." Another — "from 
ihe land of Thomas Aubrey in the county of Loudoun, across Potowmae river to 
the laud of James Hook in Maryland." 

In February 1772, Hen. vol. 8, p. 554, a new ferry was established "from the 
land of the Right Hon. the Earl of Tankerville in Loudoun county, &c. over Po- 
towmae river to the opposite shore in Maryland." 

In 1678, Hen. p. 546 of vol. 8, a new ferry was established "from the land of 
Abraham Shepherd in the county of Berkeley, over the Potowmae river to the 
land of Thomas Swearingen in the state of Maryland." 

In 1678, 8 vol. Hen. S. page 585, two new ferries were established, to wit : 
4 - From the land of the Earl of Tankerville in the county of Loudoun, across Po- 
tomack river to the opposite shore in the state of Maryland" — and "from the land 
of Thomas Noland in the county of Loudoun, across Potowmae river to the land 
of Arthur Nelson in the state of Maryland." 

In October 1785, a new ferry was established (Hen. vol. 12, p. 83) "from the 
land of John Turberville, known by the name of Dial's landing in the comity of 
Fairfax, across Potowmae river to the opposite shore in the state of Maryland." 

In 1786, October (Hen. vol. 12, p. 403), a new ferry was established " from the 
land of Thompson Mason dee'd in the county of Loudoun, across Potowmae river 
to the land on the opposite shore in the state of Maryland." 

All the ferries above named, except the two last, were established by acts passed 
prior to the compact between the states of Virginia ami Maryland, which was rati- 
fied in October 1785. See Hen. St. p. 50-55 of 12th vol. 

It will thus be seen, that up to the date of the ratification of the compact be- 
tween Virginia and Maryland, as many as twenty-eight ferries had been estab- 
lished, by acts of the legislature of Virginia, over the Potowmao river to Mary- 
land, most of them below, and many above the flow of the tides. 



16 Doc. No. 39. 

So far as I can ascertain from the published laws of Maryland, not one ferry 
across the Potomac river was established by Maryland up to the year 1781. 

In November of that year an act was passed by the legislature of Maryland, 
entitled "an act to regulate public ferries," which enacted "that the justices of 
the several county courts be authorized and required, at their respective March 
courts, during the continuance of this act, to grant their license to an inhabitant 
of their county to keep a public ferry, at any place within their county now used 
as such, if said justices shall think that a public ferry ought there to be kept and 
established, and from such place to any other county or from this to any other 
state," &c. See Kilty's Laws of Maryland, vol. 1st, Anno 1781, chap. 22. 

Whether any ferries have been so established over the Potowmac river since the 
passage of this act, I am unable to ascertain from any publications to which I have 
access. 

Since 1785 many additional ferries have been established, by acts of the Virginia 
legislature, over the Potowmac river to Maryland, both above and below tide water. 
In vol. 2 of the Revised Code of 1819, page 243, will be found a list of ferries over 
Potowmac river and its branches, then recognized and regulated by law. In this 
list will be found most of those above mentioned; and others subsequently estab- 
lished. I have not thought it necessary to trace down, through still later years, 
the enactments of Virginia in regard to ferries over the Potowmac river, evidenc- 
ing her exercise of jurisdiction in that form over the said river. 

In 1667 the colonial legislature of Virginia passed an act entitled "an act for 
fortes to be built in each river." By the provisions of this act, among others, one 
fort was required to be built in "Potowmac river at Yehocomico ;" and the act 
goes on to provide and require, that "within command of which forts all ships 
trading to those respective places may conveniently and in all probability securely 
ride and load." Other provisions of said act show that Virginia, through her 
colonial legislature, then claimed and exercised jurisdiction over the Potowmac 
river. 

Anno 1691 the colonial legislature passed an act entitled " an act for ports," 
&c. ;* by which, among other things, it is enacted, " that from and after the 1st of 
Oct. 1692 all ships," &c. "arriving into or going out of this country for trade, 
shall load and unload at some one or other of the places herein after mentioned in 
this act, under penalty of the forfeiture of the vessel," &c. ; and by a subsequent 
clause, the following places are named, as ports for the counties of Stafford, Lan- 
caster, Northumberland and Westmoreland : 

"For Stafford, on the land where Capt. Mallachy Peale now liveth, called 
Potowmac Neck. 

" For Lancaster, on the land where Mrs. Hannah Ball now liveth, situate on 
the western side of the mouth of Corotoman river. 

"For Northumberland, on Chicacone river, being the land of Mr. Spencer 
Mottsom, formerly laid out for a town according to a former act. 

*By royal mandate, the operation of this act was suspended by act of 1692-3, vol. 3, p. 108-9. 



Doc. No. 39. 17 

" For Westmoreland, on the land of Capt. William Hardidgc, where he now 
liveth, on the month of Nomini, a place formerly appointed by law." See Heu. 
St. vol. 3, p. 53-69. 

In October 1705 an act was passed concerning ports, by which Yohocomico, upon 
the land of Richard Tidwell in Westmoreland, and Potowmac creek at the Town- 
land in Stafford, were established as ports on Potowmac river — the former to be 
called Kingsale, and the latter Marlborough. See Hen. vol. 3, p. 415-417. 

This act provides in effect that the ports therein named should be the only ports 
from which vessels should clear or at which vessels coming in should enter. 

And so stood the law in relation to ports on Potowmac river from 1705 until 
May 1784, when an act was passed by the legislature of the state, entitled "an act 
to restrict foreign vessels to certain ports within this commonwealth." Section 
2nd of this act provides, that all vessels from foreign parts, not owned by citizens 
of this state, should enter, clear out, lade and unlade "at the following places, to 
wit: Norfolk and Portsmouth as one port, Bermuda Hundred, Tappahannock, 
York Town and Alexandria, and at no other ports or places therein," &c. See 
Hen. 11 vol. p. 402, 3, 4. 

The act of May 1784 was amended by an act passed in October 1786, Hen. vol. 
12, p. 320, by distinguishing between ports of entry and clearance, and ports of 
delivery. Section 2d, among other things, provides in these words : " For the dis- 
trict of South Potowmac, for all vessels coming from or going to sea, or any part 
of the Chessapeak bay, or any part of the Maryland shore below ' Point Look- 
out,' at the port of Yocomico : all vessels coming from or going to any part of the 
Maryland shore above the said Point Lookout, at the said port of Yocomico, or at 
the port of Alexandria." 

Section 3d, relative to "ports of delivery," is [concerning the Potowmac river] 
in these words : " For the district of Potowmac river, the ports of Alexandria and 
month of Quantico." 

The above act was amended by an act passed the 5th of January 1788 [for 
which see 12th vol. Hen. St. page 434], in several particulars. Among others, 
Yocomico was added to the number of " ports of delivery for foreign vessels" for 
the "district of Potowmac river," and Yocomico, mouth of Quantico and Alexan- 
dria were made ports of delivery for vessels of the " United States" for the "dis- 
trict of Potomac river," &c. 

Section 7 provides, that " All masters of vessels coming into this commonwealth 
shall be obliged to make a true and just report to the naval officer at the lowest 
port of entry upon the river they shall be bound to, except the river Potowmac, of 
all cargo," &c. 

In 1788, January 7th, Hen. vol. 12, p. 438-9, &c, an act was passed the Vir- 
ginia legislature, entitled "An act to amend the several acts of assembly concern- 
ing naval officers and the collection of duties ;" which, among other things, pro- 
vides by section 1st, that there shall be a naval officer for the "district of Soutli 
Potowmac," who shall reside [by section 3] at Yeocomico, or Alexandria. 
3 



18 Doc. No. 39. 

Section 17 is in these words : " Nothing herein contained shall be construed to 
affect or as being intended to affect the rights and obligations arising under the 
act of the general assembly entitled an act to approve, confirm and ratify the 
compact made by certain commissioners appointed by the general assembly of the 
state of Maryland and commissioners appointed by this commonwealth." 

And thus stood the laws of Virginia at the time of the adoption of the constitu- 
tion of the United States, in regard to ports upon the Potomac river. 

Pilots and ports could only relate to the tide water portion of the Potowmac. 
Ferries pertained to the river above as well as below tide water ; and in regard to 
all three of these subjects, it is manifest that Virginia legislated as the sole and 
only rightful claimant of the river. And consistent with such claim of right in 
herself, and inconsistent with any just claim or acknowledged right of Maryland, 
in the year 1772, Hen. vol. 8, p. 570, we find an act of the Virginia legislature, 
entitled an " act for opening and extending the navigation of the river Potowmac 
from Fort Cumberland to tidewater." All the provisions of this act show that 
Virginia was legislating upon the subject as the sole rightful owner of the whole- 
river Potowmac, from its mouth to its source. 

I have carefully examined the statute laws of Maryland from 1635 to 1781, as 
the same are to be found in "Bacon's Laws of Maryland," reaching down to 
1764 — and "Kitty's Law," reaching down to 1781, and to a later date. 

In Bacon's Laws, A. D. 1706, chap. 14, the title of an act is given, to wit, an 
act for the advancement of trade and erecting ports and towns in the province of 
Maryland, on which the publisher Bacon makes this note : "N. B. — This act, with 
its supplementary of 1707, chap. 16, and its additional supplementary act of 1708, 
chap. 3, being disallowed by her majesty, are no longer in' force; but, as they are 
referred to by the act of 1715, chap. 32, and all property obtained under them 
confirmed by that act, it is thought expedient to give an extract of such parts of 
these disallowed laws, as private property may in any wise depend upon." 

By the terms of these acts, " St. Mary's town in Potowmac" is named as one 
of the ports, which these acts propose to establish ; and tho' named as in Potow- 
mac, was in fact, several miles from the shore of that river, being upon St. Mary's 
river, some two or three miles from its mouth, and of course within the jurisdic- 
tion and boundary of Maryland, and by a short portage, accessible from the Pe- 
tuxent river. By the act of 1707 aforesaid, "Nanjemye" [which I shall have 
occasion to notice again when I come to refer to the pilot laws, by which the Po- 
towmac river was governed] was established as a town on Potowmac river, on the 
upper side of Nanjemye creek, and made one of the members of the port of St* 
Mary's, as were all other towns in Potowmac river, "with the rivers, creeks and 
coves thereunto belonging." These three acts of 1706, 1707 and 1708, above re- 
ferred to, were the only legislative attempts made by the province of Maryland to 
establish ports in the Potowmac river ; and they having been dissented from by 
the crown, such ports were not established. From the time of such dissent, I do 
not find either in Bacon's book, or in Kilty's laws of Maryland, any further at- 
tempt made by the provincial or state legislature of Maryland, down to the year 
1785, to establish ports in the Potowmac river. 



Doc. No. 39. 10 

I will now call attention to the acts of the colonial and state legislatures of Vir- 
ginia in reference to pilots and pilotage in the said river Potowrnac, in reference 
to which subjects Virginia alone exercised jurisdiction and authority over the 
whole river from its mouth to the head of the tides. 

The first general law upon the subject which I have found, was passed in May 
1755, and will be seen in the 6th vol. of Hening's St. at Large, page 490, and is 
entitled an act for establishing pilots, ana regulating their fees. 

I quote a portion of the preamble : 

"Whereas it is necessary for the safefr and preservation of ships and vessels 
coming into the bay of Chesapeake, bomtd up the rivers of this dominion, that 
able and experienced pilots," &c. 

Section 2d provides that the governor should appoint all such pilots. 

Section 3d imposes penalties on any and all who shall presume to act as pilots 
to any of the places named therein after, without a branch from the governor of 
Virginia. 

Section 7th fixes the fees or rates to be charged to the several places named — 
and those of Potomac river I quote. 

" On Potowrnac river : 
From Cape Henry to Smith's Point on South Powtomac, 
" Smith's Point to Coan, per foot, 
" " Yeocomico, per foot, 

'• " Nomini, " - - 

u " Maddox, 

" " Upper Machodac, per foot, 

" " Nangomy, " - 

" " Boyd's Hole, " 

" " Quantico, 

" " Alexandria, '* 

And the same fees back to the capes." 

Now, Nangomy is the same place called Nanjemye in the Maryland act to estab- 
lish ports and towns in 1706, before referred to. In 1762 another act, with a 
similar preamble, was passed, prescribing the mode in which pilots should be ex- 
amined and appointed by commissioners from counties named in the act. Among 
those named are Westmoreland, Lancaster and Northumberland. 

And by section 7th of said act the points on the Potomac river are named, and 
.the charges to each fixed ; and in this list of places five additional places are 
•named, to those in the first act referred to, to wit : 

(See for act, vol. 7, page 584, Hen.) 

To Machodax, - - - - 2 

> Acquia, - - - - 4 9 

Occoquan, - - - - 5 4 

Piscataway, - - - - 6 4 

Eastern branch, - - - - 8 



5 











1 


6 





1 


7 





1 


8 


(1 


2 








2 


3 





3 


6 





4 








4 


6 


(1 


6 


<; 



20 



9. 



The last named place was an- 
was Piscataivay, I presume, as 
the Northern Neck, at a short (lis i 
or town by that name is laid di r 
coquan and below Alexandria. 

In May 1778 the commonwea 
the commissioners of the navy IV 
p. 470. 

In 1783, Hen. vol. 11, p. 185, 
lar to the one already quoted, ar 
of the first act referred to, but h 
Potowmac, to which fees were r 
taining the names of Piscatawa 
be found in vol. 11, but not wort 

After the cession of Alexandj 
permitted the power of appoiuth 
her hand; but since its retrocesH 
connected with that subject, ai 
Maryland. 



the state of Maryland — and so too 

name is laid down on the map of 

coquan — and on that map no creek 

inia shore of Potowmac above Oe- 



passed an act *•' vesting powers in 
ites of pilotage." See Hen. 9 vol. 



another act, with a preamble eimi- 
al respect changing the provisions 
or two of the points on the river 
ced in previous laws, but still re- j 
d East Branch. Other act3 may 
iti connection. 

he district of Columbia, Virginia 

Potowmac river to escape from* 

mined that power and all others 

xercises it, without deferring to 



The resolution under which ( i authorized, required that the ex- 

penses of it should not exceed t\ ars. Of that amount, the neces- 

sary expenditures have been kep rits of eleven hundred dollars, in- 

cluding land and sea passage to England and back. The residue of the sum, to- 
gether with two hundred and seventy-five dollars of private funds, have been ex- 
pended in the procurement of the books, maps and manuscripts, of which mention 
has been ma " 

All which is moBt respectfully snbmitted to your excellency, by 



Yonr obd't serv't, 



a. w. Mcdonald. 



His Excellency Johh Letcher, 

Governor of Virginia. 



\ 



